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July 5, 2014

Former attorney tries creative argument, loses

MARBLEHEAD — For decades, John C. McBride was known as one of the most colorful — and successful — defense attorneys around.

Then in 2005 he lost his law license for a series of ethical violations. Over the next few years, he lost his homes in Marblehead and Edgartown. There were tax troubles with the government, then charges that he was practicing law without a license.

So when federal prosecutors obtained an indictment charging McBride, 65, with fraud after learning he’d allegedly tried to save those homes by filing forged releases of federal tax liens and a mortgage, they feared he had nothing to lose by fleeing.

They asked a judge to seal the indictment until he was arrested.

McBride, who is now represented by a public defender, recently tried to have the entire case dismissed. His argument: by sealing the indictment, then having 10 police officers, FBI and IRS agents show up at his Braintree home to arrest him last year, they violated his Fourth Amendment right against “unreasonable seizure.”

McBride’s lawyer, Charles McGinty, said prosecutors should have simply sent McBride a summons to appear in court. He noted that McBride had been aware of the investigation since 2012 and did not have a valid passport.

But in a ruling released this week, U.S. District Court Judge Patti Saris concluded that while she agreed that there was no real need for the indictment to be sealed, the error doesn’t amount to a violation of McBride’s rights or any federal rules of procedure.

After all, the judge concluded, there was probable cause found by a grand jury to indict McBride, and the rules of criminal procedure give prosecutors the option of either arresting a defendant or sending him a summons.

“Even though the evidence does not support a risk of flight in the circumstances of this case, the error is a non-constitutional one,” the judge wrote. “There is no case law that suggests that dismissal of an indictment is the appropriate sanction for an unwarranted sealing.”

McBride is scheduled to stand trial next January.

Courts reporter Julie Manganis can be reached at 978-338-2521, via email at jmanganis@salemnews.com or on Twitter @SNJulieManganis.

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